Providing legal protection for superhero characters

Avengers: Endgame has amassed over 2 billion dollars in the international box office and broken several box office records. Hidden behind the record breaking Marvel Cinematic Universe is an intellectual property infrastructure which supports such success.

Over the past 80 years, the superhero genre has stretched beyond its comic strip origins, into different forms of media, products and services.

Intellectual property law has facilitated the way these film franchises create brands. Most moviegoers are largely unaware of the extent to which creative organisations, such as Marvel, use the law to protect and commercialise their superhero characters.

Enter Intellectual Property

Marvel has always fiercely protected their superheroes inside and outside of court. Increasingly so with the introduction of various adaptations of their characters into major film and television franchises. One way to protect a superhero character is to obtain a registered trade mark for their name, attributes of their image, or accompanying logo or insignia.

Trade mark registration affords Marvel the right to commercialise these attributes — including by means of licensing arrangements (for example, using Spider-man’s image on a box of cereal). It also allows Marvel to stop others from using these attributes in the course of trade without permission.

In essence, trade marks are words, symbols, figures, shapes, colours, or any combination thereof. These signs help consumers to distinguish between goods and services that may come from different traders.

Trade marks are not the only legal method that can be used to protect the assets of creative industries. Trade marks are part of the wider family of intellectual property rights. The concept of copyright, for instance, is widely known to the public but is commonly confused with trade marks.

Copyright protection is designed to reward an author for their creation of literary and artistic works (including comic book publications). Copyright law facilitates the dissemination of such creative works, on consent from the author and during the term of protection (being the life of the author plus 70 years).

Trade marks, on the other hand, are not built on a system of reward — it is concerned with the interests of consumers and the avoidance of deception and confusion in the marketplace. In contrast to copyright, trade mark protection can last indefinitely.

Comic books attract protection under both intellectual property regimes — including the artistic and literary works within its pages and the trade mark title on the cover. With copyright and trade mark law protecting different subject matter and providing a different scope of protection, it is possible for Marvel to leverage both systems to their advantage.

Over time Marvel has moved outside the pages of comic books and used their characters on products such as toys, clothing, confectionery, and backpacks.

Most superhero comic books are also no longer a form of mass media. The most recent issue of the Avengers comic struggled to sell more than 60,000 copies through local comic book stores. While in April 2018, the industry magazine Global Licence reported that Marvel’s parent company, The Walt Disney Company, brought in $5.3 billion of retail sales for 2017 in licensed products.

What is Marvel protecting?

Marvel and DC have long been involved in an arms race, battling it out at the box office with their film franchises. At the heart of this slugfest is licensing revenue – derived from their intellectual property assets.

Over the past 80 years, Marvel applied for 3,135 trade marks in connection with their superhero characters around the world. The graph below shows the general trends in the number of trade mark applications filed per year from 1965 to 2016. Marvel currently has 1,604 trade marks registered (51% of the total). Spider-Man was subject to the highest number of applications with 408 (making up 13% of Marvel’s total portfolio).

The number of applications has dramatically increased in the past two decades. This increase in activity unsurprisingly comes at a time when comic book characters and titles have been adapted for film and television. Marvel has, in particular, accelerated in the past decade (likely attributed to their acquisition by The Walt Disney Company).

From the 1990s onward, major spikes in activity correspond to the 1992 X-Men and 1994 Spider-Man animated television series, the 2000 X-Men film adaptation and the 2011 Captain America film adaptation. The largest spike observed coincides with the announcement in 2014 of the ‘Phase 3’ films in the Marvel Cinematic Universe.

These trade marks also reveal Marvel’s intention to engage in merchandising activity — putting their superheroes on an array of goods and services.

Over this period, Marvel claimed a variety of goods and services in their trade mark applications. Unsurprisingly the most popular being publications (including comic books). Marvel also filed trade mark applications covering toys and sporting goods, instruments, software (including videogames), digital recording media (such as DVDs), clothing and footwear, and entertainment services.

While the majority of these applications are indicative of activities related to products produced by Marvel (i.e. media products), the vast majority convey an intention to extensively license their characters to merchandisers that manufacture and sell a variety of goods.

So, is what we see on the big screen just a movie — or is it an advertisement disguised as a feature film designed to entice us to buy?